delivered tha opinion of the court.

The evidence does not support the finding of the court below that Humphries was “fleeing or attempting to flee” at the time of his arrest. On the contrary, it very clearly appears that he was not, but was, in open day, upon a most public highway, going to the town in which he lived, and, if he had not been arrested where he was, would, within a few minutes, have reached the business part of the town; and that, when arrested, he stated that he was on his way to surrender to the proper authorities. Under these circumstances, no allowance can be made to the arresting person.

The judgment is reversed, and the petition of appellee dismissed.